Majority
On September 3, 2014, Vikash filed a request for an order terminating spousal support and dissolving the marriage. Vikash asserted that Ashlyne had made no efforts to become self-supporting, and he urged the court to impute to her income from a full-time, minimum wage job.
Ashlyne filed a responsive declaration to Vikash's request. She stated that she did not have a work permit because Vikash stole her green card and she was still waiting for replacement papers. Ashlyne reported that when she tried to apply for jobs, she was asked for proof of residency, and that after Vikash abandoned her, she was on cash aid and food stamps until she started receiving spousal support. Ashlyne attached the I-864 affidavit to her response, and asked the court to continue support "because [Vikash] swore to the US Government he would take care of me for 10 years or 40 working quarters...."
Subsequently, Ashlyne filed an amended memorandum of points and authorities in opposition to Vikash's request to terminate spousal support.[5] In this brief, Ashlyne asked the court to enforce the specific support requirements of the I-864 affidavit, requesting an order that Vikash "pay support at $1,196.15 per month." Ashlyne explained that the poverty guideline for a one-person household for 2014 was $11,670 per year, and she claimed Vikash was obligated to support her at $14,354.10 per year or $1,196.175 per month.
Ashlyne argued that an I-864 affidavit is a binding contract, and the support obligation of the I-864 affidavit was in addition to any right to spousal support based on state law. She maintained that divorce did not terminate the support obligation, and the short length of the marriage did not matter. Ashlyne further argued that requiring her to bring a separate contract action to enforce the obligation would be contrary to judicial economy.
5 According to the register of actions, Ashlyne's original memorandum of points and authority was filed on October 16, 2014. The original memorandum is not part of the appellate record.
DISCUSSION
A. Standard of Review
On appeal, Ashlyne contends the trial court erred in ruling on her contract claim for enforcement of the I-864 affidavit by incorrectly finding that her failure to mitigate damages excused Vikash from his contractual obligations. Whether the trial court denied Ashlyne's enforcement claim on the ground she failed to mitigate damages or because it believed she had no right to enforce the contract in state court, the issues presented are questions of law on undisputed facts, which we review de novo. ( Department of Health Care Services v. Office of Administrative Hearings (2016) 6 Cal.App.5th 120 , 141, 210 Cal.Rptr.3d 790 .)
We reject Vikash's argument that the applicable standard of review is abuse of discretion. Vikash argues we should review whether the trial court abused its discretion in terminating temporary spousal support under the considerations set forth in the Family Code. Ashlyne, however, is not challenging the
The statute and regulation are clear. A sponsored immigrant has independent standing to enforce the obligations of an I-864 affidavit against her sponsor, and may bring such an enforcement claim in state (or federal) court. Federal and out-of-state courts agree with this proposition. (
Vikash urges us to consider the analysis of four out-of-state cases, but three of the cases support Ashlyne's position that she may enforce the I-864 affidavit in the current dissolution proceeding. Barnett v. Barnett (Alaska 2010) 238 P.3d 594 , Love v. Love , supra , 33 A.3d 1268 , and Iannuzzelli v. Lovett (Fla.Dist.Ct.App. 2008) 981 So.2d 557 , all involve immigrant spouses who sought to enforce I-864 affidavits in state divorce proceedings. In each case, the state court exercised jurisdiction over the immigrant spouse's contract claim based on an I-864 affidavit.[6]
The fourth case Vikash relies on is In re Marriage of Khan (2014) 182 Wash.App. 795 , 332 P.3d 1016 . In that case, the wife sought to enforce her husband's I-864 affidavit in their divorce proceeding, arguing husband's "I-864 support obligation was a basis for a maintenance award." ( Id . at p. 798, 332 P.3d 1016 .) The trial court tried to fashion a compromise support order, the end result of which seemingly failed to comport with either state law or the terms of the affidavit.[7] The wife appealed. On appeal, the parties agreed that the husband owed the wife an ongoing support obligation under the I-864
6 In Barnett v. Barnett , supra , 238 P.3d 594 , the trial court entertained the immigrant spouse's contract claim, but found that she was not entitled to support under the terms of the I-864 affidavit. The Alaska Supreme Court affirmed, holding that the trial court did not err in interpreting 8 United States Code section 1183a. ( Id. at pp. 597-599.) In Love v. Love , supra , 33 A.3d 1268 , the Pennsylvania appellate court held the trial court erred in refusing to consider the I-864 affidavit. The court concluded, "[W]e reject the trial court's conclusion that Wife was precluded from enforcing the affidavit of support during the support proceedings and its attendant holding that Wife is required to initiate a separate civil action based upon the Affidavit seeking either compensatory damages or specific performance." ( Id . at p. 1275.) In Iannuzzelli v. Lovett , supra , 981 So.2d 557 , the Florida state trial court ruled that the I-864 affidavit was an enforceable contract, but it determined the wife was not entitled to a monetary award under the terms of the affidavit. ( Id . at 559.) On appeal, the wife acceded to the trial court's factual finding. ( Id . at p. 561.)
7 "The trial court concluded that under state law maintenance was not appropriate for several reasons. Nevertheless, it awarded [the wife] maintenance of $2,000 per month through June 2013, three months from the date of the dissolution decree. The trial court based its maintenance award on a perceived conflict between [the husband's] I-864 obligation under federal law and Washington dissolution law. It concluded that [the wife's] I-864 rights preempted state law and limited its ability to impute income to [the wife] based on her earning capacity and education, and stated that in awarding maintenance it was balancing federal and state law." ( In re Marriage of Khan , supra , 182 Wash.App. at p. 798, 332 P.3d 1016 .)
In re Marriage of Khan does not help Vikash, either. It does not stand for the proposition that enforcement of an I-864 affidavit preempts state law. To the contrary, the Khan court held that a maintenance award ordered pursuant to Washington state law cannot be based solely on the non-statutory factor of the affidavit. ( In re Marriage of Khan , supra , 182 Wash.App. at p. 802, 332 P.3d 1016 .)[9] Nor did the Khan court hold that a state court lacks jurisdiction over a sponsored immigrant's contract claim based on an I-864 affidavit.
Finally, in response to the argument of amicus curiae that a sponsored immigrant must be permitted to enforce an I-864 affidavit in family law proceedings, Vikash takes the position that an I-864 affidavit simply is not enforceable in a dissolution action. He argues, "The place for enforcement is in a civil trial court where the sponsored spouse or governmental agency seeking reimbursement brings a cause of action to enforce the I-864 against the signing sponsor, thereby fulfilling its purpose of making the government whole, not to create a right of support." This argument is unavailing. First, there is no separate "family court" jurisdiction. "In practice, the superior court exercising jurisdiction under the Family Code is known as the 'family court' (or 'family law court'). But there is no separate 'family court' per se. Rather, 'family court' refers to the activities of superior court judicial officers
9 Once again, we observe that Ashlyne does not argue she was entitled to support based on state law. As a result, we see no inherent conflict between our decision and the result in In re Marriage of Khan .
On appeal, Ashlyne urges us to follow the Seventh Circuit Court of Appeals, which held that a sponsored immigrant seeking to enforce the support obligation created by an I-864 affidavit has no duty to mitigate damages. ( Liu v. Mund (7th Cir. 2012) 686 F.3d 418 , 420, 422-423 ( Liu ).) In Liu , the sponsored immigrant Liu and her husband Mund divorced, and Liu brought an action in federal district court for support based on Mund's I-864 affidavit. The only issue on appeal was whether Liu had a duty to mitigate damages. ( Id . at p. 420.)
The Seventh Circuit began its analysis by considering the purpose of the I-864 affidavit. "The Immigration and Nationality Act forbids admission to the United States of any alien who 'is likely at any time to become a public charge.' ( 8 U.S.C. § 1182 (a)(4)(A) ; see also id ., § 1601(2)(A), (5).) This provision is implemented by requiring a person who sponsors an alien for admission to 'execute an affidavit of support.' ( 8 C.F.R. § 213a.2(a), (b) ; see also 8 U.S.C. § 1182 (a)(4)(C)(ii).) The affidavit, the contents of which are specified in 8 U.S.C. § 1183a, is in the form of a contract between the sponsor and the United States ( 8 C.F.R. § 213a.2(d) ) called Form I-864. Public providers of benefits to indigents are designated as third-party beneficiaries of the affidavit-contract and are expressly authorized by the Act to sue a sponsor who defaults on his support obligation. ( 8 U.S.C. § 1183a(a)(1)(B) ; see also § 1183a(b)(1)(A).)" ( Liu , supra , 686 F.3d at p. 420.)
The court concluded: "In sum, we can't see much benefit to imposing a duty to mitigate on a sponsored immigrant. The cost, besides the sponsor's diminished incentive to screen the alien for a bad work ethic, would be the increased complication of enforcing the duty of support by giving the sponsor a defense-and not even a defense likely to prevail. If Liu doesn't want to
The issues raised in this appeal appear to be matters of first impression in California.[1] We hold that an immigrant spouse has standing to enforce the support obligation created by an I-864 affidavit in state court. We further hold that an immigrant spouse bringing such a claim has no duty to mitigate damages. Because the trial court's ruling in this matter conflicts with our holdings, we reverse. We remand to the trial court to consider the immigrant spouse's contract claim in accordance with this decision.
FACTUAL AND PROCEDURAL BACKGROUND
Vikash Kumar was born in Fiji and is now a United States citizen. Ashlyne Kumar is a citizen of Fiji. On September 22, 2012, Vikash, then 27 years old, and Ashlyne, then 25, married in Fiji in an arranged marriage.[2]
Vikash filed a form I-130 immigration visa petition for alien relative on behalf of Ashlyne, and the petition was approved on December 1, 2012. In connection with bringing his new wife to the United States, Vikash signed a form I-864 affidavit of support (I-864 affidavit) and submitted it to the federal government in April 2013. The purpose of an I-864 affidavit is "to ensure that an immigrant does not become a public charge." ( Younis v. Farooqi (D.Md. 2009) 597 F.Supp.2d 552 , 557, fn. 5.) A form I-864 affiant is usually referred to as a "sponsor."
Under the heading "Part 8. Sponsor's Contract," the I-864 affidavit signed by Vikash gave the following warning: "Please note that, by signing this Form I-864, you agree to assume certain specific obligations under the Immigration and Nationality Act and other Federal laws." On the same page, the affidavit explained that, by signing the affidavit, the sponsor agreed to "[p]rovide the intending immigrant any support necessary to maintain him or her at an income that is at least 125
1 We granted the application of National Immigrant Women's Advocacy Project to file a brief in support of Ashlyne as amicus curiae.
2 For clarity and brevity, we refer to the parties by first name only. No disrespect is intended.
Ashlyne obtained temporary travel documents from the United States Embassy in Fiji, and returned to the United States on December 29, 2013.
On January 14, 2014, Vikash filed a petition for annulment and, in the alternative, dissolution of marriage. In March 2014, Ashlyne filed a response to Vikash's petition. She asked the court to deny Vikash's request for an annulment and grant a dissolution of marriage. She did not ask for enforcement of the I-864 affidavit at that time. In April 2014, Ashlyne filed a financial statement, in which she indicated she received no salary or benefits, and she "applied for TANF, SSI, or GA/GR" (i.e., Temporary Assistance for Needy Families, Supplemental Security Income, or general assistance/general relief, respectively).
On May 7, 2014, the trial court held a hearing on spousal support. At the start of the hearing, counsel for Ashlyne informed the court that the parties had agreed to temporary spousal support for Ashlyne of $675 per month, but Ashlyne disagreed with Vikash's request for a "seek work" order and a " Gavron warning" that she was expected to become self-supporting.[4]
Ashlyne's counsel objected to an order that Ashlyne seek work on the ground that she did not have her current residency card because Vikash had stolen it and "she has no status currently." Her counsel also stated that Ashlyne was on general assistance and living in a shelter. Vikash's counsel argued that Ashlyne had a duty to become self-supporting, noting, "This was her choice to come here and stay here."
In response, Ashlyne's counsel raised the I-864 affidavit. She told the court that by signing the I-864 affidavit, Vikash "vow[ed] to support [Ashlyne] for
3 The facts of this paragraph are taken from Ashlyne's request for a domestic violence restraining order filed in the dissolution proceeding, which was granted. In addition, Vikash and Ashlyne stipulated to a three-year restraining order protecting Ashlyne and restraining Vikash, which was filed on July 18, 2014.
4 See In re Marriage of Gavron (1988) 203 Cal.App.3d 705 , 712, 250 Cal.Rptr. 148 ( Gavron ); In re Marriage of Schmir (2005) 134 Cal.App.4th 43 , 55, 35 Cal.Rptr.3d 716 ["[A] ' Gavron warning' is a fair warning to the supported spouse he or she is expected to become self-supporting."].)
At the close of the hearing, the trial court ordered temporary spousal support of $675 per month as agreed to by the parties. The court also gave a Gavron warning, explaining it was appropriate because "it has been a short-term marriage." However, the court did not issue a seek-work order because "there are some issues she needs to overcome before she can legally
On March 18, 2015, the trial court heard argument on Vikash's request to terminate temporary spousal support and Ashlyne's request to enforce the support requirements of the I-864 affidavit. Ashlyne's counsel reported that Ashlyne was working up to 15 hours a week at a Blimpies, making $9 per hour. She was also attending school, working toward her GED. The trial court terminated temporary spousal support effective that day.
Ashlyne's counsel asked the court to address the I-864 affidavit. The court responded, "I find for the purposes of spousal support under California law she should be working full time making minimum wage. And so I'm not going to order him to pay her support because I find she's not working up to her full potential that she should be based on her ability and need." Counsel asked whether the trial court was denying Ashlyne's request to enforce the I-864 affidavit. The court responded, "Yes, I'm denying your request because I find the respondent is not using best efforts to find work...." The court stated it would enforce the I-864 affidavit if the government sought enforcement and also told Ashlyne, "File a federal case."
B. An I-864 Affidavit is a Contract Enforceable by the Sponsored Immigrant
An I-864 affidavit is a legally enforceable contract between the sponsor and the sponsored immigrant. ( Shumye v. Felleke (N.D.Cal. 2008) 555 F.Supp.2d 1020 , 1023 ( Shumye ).) "By signing a Form I-864 the 'sponsor agrees to provide support to maintain the sponsored alien at an annual income that is not less than 125 percent of the Federal poverty line during the period in which the affidavit is enforceable.' ( 8 U.S.C. § 1183a(1)(A).) Federal courts have consistently found that a Form I-864 constitutes a legally binding and enforceable contract between sponsor and a sponsored immigrant." ( Id . at p. 1024.)
A sponsor's obligations under an I-864 affidavit "terminate[ ] only if one of five conditions is met: (1) the sponsor dies, (2) the sponsored immigrant dies, (3) the sponsored immigrant becomes a U.S. citizen, (4) the sponsored immigrant permanently departs the U.S., or (5) the sponsored immigrant is credited with 40 qualifying quarters of work. (See 8 U.S.C. § 1183a(a)(2).) Divorce is not a condition under which the sponsor's obligations under Form I-864 can be terminated." ( Shumye , supra , 555 F.Supp.2d at p. 1024.)
Under federal immigration law, an I-864 affidavit must be "legally enforceable against the sponsor by the sponsored alien," and the sponsor must agree "to submit to the jurisdiction of any Federal or State court for the purpose of actions" of enforcement. ( 8 U.S.C. § 1183a, subd. (a)(1)(B) & (C).) Federal regulation further provides, "The intending immigrants and any Federal, state, or local agency or private entity that provides a means-tested public benefit to an intending immigrant are third party beneficiaries of the contract between the sponsor and the other individual or individuals on whose income the sponsor relies and may bring an action to enforce the contract in the same manner as third party beneficiaries of other contracts."
Vikash does not dispute that an I-864 affidavit is a legally binding contract enforceable by Ashlyne. Instead, he argues the trial court acted within its discretion in terminating the temporary spousal support order under California's statutory scheme for providing spousal support. But this is not Ashlyne's contention. She does not claim she is entitled to additional spousal support as a matter of state law. She contends that she has a contract claim for support based on the obligations of the I-864 affidavit, which the trial court erred in not considering.
Vikash suggests that Ashlyne's contract claim is procedurally improper, asserting Ashlyne "has not brought an action to enforce her rights as a third-party beneficiary in any court of competent jurisdiction," and she "did not join the Department of Homeland Security to the state court dissolution action." Vikash's undeveloped arguments lack merit. He offers no authority that a state court lacks jurisdiction over Ashlyne's contract claim. Nor does he explain why the Department of Homeland Security must be joined as a party to a sponsored immigrant's contract claim based on an I-864 affidavit. As we have seen, by signing the I-864 affidavit, Vikash agreed to submit to state court jurisdiction. ( 8 U.S.C. § 1183a, subd. (a)(1)(C).) And state courts regularly exercise jurisdiction over contract claims involving I-864 affidavits brought by the sponsored immigrant alone. (See Love v. Love , supra , 33 A.3d 1268 [Pennsylvania] ; In re Marriage of Kamali and Alizadeh , supra , 356 S.W.3d 544 [Texas] ; In re Marriage of Sandhu , supra , 207 P.3d 1067 , 1071 [Kansas] ; Naik v. Naik , supra , 944 A.2d 713 , 717 [New Jersey] ; Davis v. United States , supra , 499 F.3d 590 , 592 [recognizing propriety of enforcement of I-864 affidavit in Ohio state court]; Moody v. Sorokina , supra , 40 A.D.3d 14 , 830 N.Y.S.2d 399 [New York].)
8 The appellate court, thus, implicitly rejected the trial court's determination that enforcing the I-864 affidavit involved preemption of state law.
In sum, an I-864 affidavit is an enforceable contract, and a sponsored immigrant has standing to bring an action to enforce it in state court. To the extent the trial court denied Ashlyne's contract claim on the ground she lacked standing to enforce the I-864 affidavit, this was incorrect.
C. A Sponsored Immigrant Seeking to Enforce an I-864 Affidavit Has No Duty to Mitigate Damages
When Ashlyne's counsel asked whether her contract claim under the I-864 affidavit
The court reasoned: "[T]he stated statutory goal, remember, is to prevent the admission to the United States of any alien who 'is likely at any time to become a public charge.' [Citations.] The direct path to that goal would involve imposing on the sponsor a duty of support with no excusing conditions. Some such conditions are specified; but why should the judiciary add to them-specifically why should it make failure to mitigate a further excusing condition? The only beneficiary of the duty would be the sponsor-and it is not for his benefit that the duty of support was imposed; it was imposed for the benefit of federal and state taxpayers and of the donors to organizations that provide charity for the poor. And Mund can't argue that Form I-864 confused him, for there is no reference in it to a duty of the sponsored immigrant (Liu) to mitigate the damages caused her by the sponsor's (Mund's) breach of his duty of support." ( Liu , supra , 686 F.3d at p. 422.)
The court determined that "[t]he absence of such a duty serves the statutory objective in a second way: it tends to make prospective sponsors more cautious about sponsoring immigrants. The sponsor is the guarantor of the sponsored immigrant's having enough (though just barely enough) income to avoid becoming a public charge. The more extensive-the less qualified-the guaranty, the less likely is an irresponsible immigrant to obtain sponsorship. Liu and Mund had an awful marriage. Had he
We find Liu persuasive, and hold that an immigrant spouse seeking to enforce the support obligation of an I-864 affidavit has no duty to seek employment to mitigate damages.[10] Accordingly, we conclude it was error to deny Ashlyne's contract claim on the ground she had failed to use best efforts to mitigate damages.
DISPOSITION
The judgment is reversed. The case is remanded for the trial court to consider Ashlyne's contract claim based on the I-864 affidavit in accordance with our decision. We express no opinion on the merits of Ashlyne's contract claim. Ashlyne shall recover her costs on appeal.
We concur:
Kline, P.J.
Stewart, J.
10 We recognize there are cases that assume there is a duty to mitigate. But in those cases, it does not appear that the issue whether the support obligation of an I-864 affidavit imposes a duty to mitigate upon the sponsored immigrant was squarely raised. (E.g. Younis v. Farooqi , supra , 597 F.Supp.2d at p. 556 ["Assuming the plaintiff has an obligation to mitigate her damages by seeking employment, she need not apply for every available job in order to mitigate her losses; she need only make reasonable efforts."]; Love v. Love , supra , 33 A.3d at p. 1278 [finding the sponsor-husband failed to raise the affirmative defense of failure to mitigate, the court observed, "Although the Affidavit does not create a duty for Wife to mitigate her damages associated with Husband's breach, we acknowledge Wife's common law duty to mitigate."].)
Cases cited
- Department of Health Care Services v. Office of Administrative Hearings 6 Cal.App.5th 120 p. 867
- Moody v. Sorokina 40 A.D.3d 14 p. 1080